Please read this Mobile Application End User License Agreement (“EULA”) carefully prior to your download, use, or clicking the “I Agree” button. This EULA applies to the Beacon Compassion, Inc d/b/a UpTop (“BCI”) mobile application, network of websites, cloud-based software, interface, and messaging platform made available to you (collectively, the “App” or the “Application(s)”). The App includes all email newsletters published or distributed by BCI, all SMS or text messages transmitted or sent by BCI or its partners, and all other interactive features, services, and communications provided by BCI, however and wherever You view, download, access, and/or use them. In addition to the information or content (“Content”) made available on the App, the App provides you with various tools to submit content and participate in managing your cannabis transaction activities online and other services (the “Services”). Your access, receipt, and/or benefit of the Services are subject to this EULA.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, PLEASE DO NOT USE THE APP OR SERVICES AND EXIT IMMEDIATELY. BCI RESERVES THE RIGHT TO MODIFY OR AMEND THESE TERMS AND CONDITIONS OF THIS EULA FROM TIME TO TIME, AND BCI WILL PROVIDE YOU WITH THE NOTICE OF SUCH CHANGE OR CHANGES VIA REASONABLE METHODS. Additional terms and conditions may apply to Your use of specific services. By using the App and Services, you agree to such terms and conditions. The App is offered and available to You if you meet the following requirements:
- You are 21 years of age or older,
- You or your business have obtained any and all additional license(s) and/or medical or pharmaceutical clearances required by respective local governments relating to the sale or purchase of cannabis or cannabis products, and
- You are located within a jurisdiction where your access to our App is not prohibited.
BCI DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR TRANSACTIONS WHICH OCCUR BETWEEN INDIVIDUALS AND ENTITIES WHICH ARE OR ARE NOT PROPERLY LICENSED TO BUY OR SELL CANNABIS OR CANNABIS PRODUCTS IN THE MANNER CONTEMPLATED HEREIN. YOU ASSUME ALL CRIMINAL AND CIVIL RISK RELATED TO ANY PROPOSED OR ACTUAL TRANSACTION CONDUCTED ON THE APP. YOU ARE RESPONSIBLE FOR ENSURING THE LEGALITY OF ANY TRANSACTION CONDUCTED ON THE APP.
EULA TERMS AND CONDITIONS
- BCI grants You a revocable, non-exclusive, non-transferable, limited license to download, install, and use the App solely for its intended purpose and in strict compliance with the Terms and Conditions of this EULA. You are not allowed to modify any portion of the App and its Content. This license does not include any right to authorize third party use of the App, any collection or use of Content, any derivative use of the App or its Content, or any use of data mining, robots, or similar data gathering and extraction tools. The App and/or any portion of the App may not be reproduced, sold, resold, visited or otherwise exploited for any commercial purpose without BCI’s express written consent. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the App or any activities conducted on the App; or (iii) bypass any measures we may use to prevent or restrict access to the App. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to You. The license territory is limited to Your use within the United States.
- Use of Personally Identifiable Information (“PII”). We have taken reasonable and necessary steps to ensure that all PII collected will remain secure. These steps include physical, electronic, and administrative procedures to safeguard and help prevent unauthorized access or disclosure, maintain data security and correctly use the PII that we collect. The processing of the PII we collect is carried out using computers and/or IT enabled tools, following organizational procedures and modes appropriate and necessary to providing the App and/or Service. It is important that you help protect the privacy of your own information. We strongly recommended that you take precautions to protect the security of any PII that you transmit by using device security features, encryption and other techniques to prevent unauthorized interception of your PII. You are responsible for the security of your information when using unencrypted, public or otherwise unsecured networks. Please understand, that while we try our best to safeguard your PII once we receive it, no transmission of data over the Internet, cellular data, or any other public network can be guaranteed to be 100% secure.
- Electronic Communications and Solicitation. When you visit or use the App, receive Services, or engage in SMS or text messaging exchanges, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail, SMS, text message, or by posting notices on the App. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirement that such communications be in writing. We reserve the right to send you marketing and promotional emails, SMS, and text messages. You may opt out of receiving marketing and promotional messages by following the instructions in those messages. If you opt out or revoke your consent from receiving electronic communications, we may still send you non-promotional emails, such as emails about your account or our ongoing business relations. By downloading the App, You consent and authorize BCI to send You (including via email, text and push notifications) information regarding Your use of the App, such as: (a) notices about Your use of the App, including notices of violations of use; (b) updates to the App and new features or products; and (c) promotional information and materials regarding BCI’s products and Services.
- Copyright and Ownership. All of the Content is owned by BCI, its licensors, vendors, agents and/or its Content providers. All elements of the App, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The App and the Services may only be used for the intended purpose for which such App and Services are being made available. Except as may be otherwise indicated in specific documents within the App or as permitted by copyright law, you are authorized to view and play copyrighted documents, audio and video found on our Sites solely for the purposes intended by BCI. In no event will you be permitted to download or store any copyrighted documents, audio or video locally. Notwithstanding the foregoing, you will be permitted to print and save reports, agreements, and other documents made available to you from the Services from BCI. The App, its Content, the Services, and all related rights shall remain the exclusive property of BCI or its licensors unless otherwise expressly agreed.
- User Account Obligations and Security. You understand that you will need to create an account to have access to all of the parts of the App and to the Services. In consideration of your use of the App and Services, you will: (a) provide true, accurate, current and complete information about yourself and/or your business as prompted by the account registration pages (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or BCI has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BCI reserves the right, in its sole discretion to suspend or terminate your account and refuse any and all current or future use of the App (or any portion thereof) or Services. You are entirely responsible for the security and confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You will not share your account information or your user name and password with any third party or permit any third party to logon to the App or Services using your account information. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services and the App. We have the right to provide user billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business). Please note that anyone able to provide your personally identifiable information will be able to access your account so you should take reasonable steps to protect this information.
- Representations and Warranties. You represent that You are over the age of 21, have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein, and Your use of the App and Services is and will be in compliance with all applicable laws, including having all necessary licenses, medical clearances, and registrations as required by state and local laws. Furthermore, you shall be solely responsible for your own user activities and the consequences of posting or publishing them. In connection with your use of the App, you affirm, represent and warrant the following: (i) You have obtained all consents, and possess all copyright, patent, trademark, trade secret and any other proprietary rights, or the necessary licenses thereto; (ii) if necessary you have the written consent of each and every identifiable natural person to use such persons name or likeness in the manner contemplated by the App and this EULA, and each such person has released you from any liability that may arise in relation to such use; (iii) You have read, understood, agree with, and will abide by the terms of this EULA; (iv) Your user submission and activities does not and will not contain: (a) material falsehoods or misrepresentations that could harm BCI or any third party; (b) content that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing or encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; (c) advertisements or solicitations of business; or (d) impersonations of third parties, other than those which are readily apparent.
- YOUR USE OF THE APP AND THE SERVICES IS AT YOUR RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE APP AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER BCI NOR ANY OF ITS AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THE APP. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE APP MAY BE OUT OF DATE, AND NEITHER BCI, NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BCI OR THROUGH THE BCI APP AND SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- Limitations of Liability. BCI does not assume any responsibility, or will be liable, for any damages to, or any viruses that may infect your computer, cellular device, tablet, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing the App, or your downloading of any information or materials from the App. IN NO EVENT WILL BCI, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE APP OR SERVICES, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE APP, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL SUCH APPS, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT BCI SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. IN THE EVENT OF ANY PROBLEM WITH THE SITES OR ANY CONTENT OR SERVICES THEREON, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SITES. IN THE EVENT OF ANY PROBLEM WITH THE SERVICES THAT YOU HAVE SUBSCRIBED TO ON OR THROUGH THE APPS, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS TO SEEK A REFUND FOR SUCH SERVICES. IN NO EVENT SHALL BCI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS (US $100.00) OR (B) THE VALUE OF YOUR ANNUAL SUBSCRIPTION FEES (IF ANY) FOR ACCESS TO THE APPS OR SERVICES.
- You agree to defend, indemnify and hold BCI and any affiliated company or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (i) the use of the App, the Services or any other third party resources/products, or your placement or transmission of any message or information on this App by you or your authorized users; (ii) your violation of any term of this EULA, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any user submission that you provide to BCI; or (vi) any other party’s access and use of the App with your unique username, password or other appropriate security code.
- In the event that you have a dispute, you release BCI (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
- You or we may suspend or terminate your account or your use of the App at any time, for any reason or for no reason. You are personally liable for any subscriptions placed or charges incurred through your account prior to termination. We may also block your access to our App or Services in the event that (a) you breach this EULA; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
- Dispute Resolution and Arbitration. In the interest of resolving disputes between you and BCI in the most expedient and cost effective manner, you and BCI agree that every dispute arising in connection with these EULA terms will be resolved by binding arbitration, to the fullest extent permitted under applicable law. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BCI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. YOUR WAIVER OF PARTICIPATING IN A CLASS ACTION MEANS THAT YOU MUST BRING YOUR OWN INDIVIDUAL ARBITRATION ACTION, YOU MAY NOT JOIN A CLASS OR AGGREGATE YOUR CLAIM(S). Despite the provisions of this section, nothing in these EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim. The following provisions also apply:
- To the fullest extent permitted under applicable law, any arbitration between you and BCI will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting BCI.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). BCI’s address for Notice is: 306 East Gay Street, Columbus, OH The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or BCI may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or BCI must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
- You agree that this EULA and your interactions with BCI are governed by the laws of the State of Ohio
- Any arbitration hearing will take place at a location to be agreed upon in Columbus, Ohio. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse BCI for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 30 days of the arbitrator’s ruling on the merits.
- No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND BCI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and BCI agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to the Arbitration Provision. If BCI makes any future change to this arbitration provision, other than a change to BCI’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to BCI’s address for Notice, in which case your account with BCI will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Consumer Protection Notice. Please note that, if you are a consumer, the limitations in this EULA are intended to be only as broad and inclusive as is permitted by the laws of your state of residence.
- No Included Maintenance and Support. BCI may deploy changes, updates, or enhancements to the App at any time. BCI may provide maintenance and support for the App, but has no obligation whatsoever to furnish such services to You and may terminate such services at any time without notice. You acknowledge that neither Apple (for iOS App) nor Google (for Android App) has an obligation to furnish any maintenance or support services in connection with the App. The App is only available for supported devices and might not work on every device. Determining whether Your device is a supported or compatible device for use of the App is solely Your responsibility, and downloading the App is done at Your own risk. BCI does not represent or warrant that the App and Your device are compatible or that the App will work on Your device.
- Reservation of Rights. BCI reserves all rights not expressly granted to you in the terms of this EULA. Except for the limited rights and licenses expressly granted herein, nothing in this EULA grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to BCI’s intellectual property.
- Changes to this EULA. BCI reserves the right to modify this EULA at any time and for any reason. BCI will post the most current version of this EULA at https://uptop1.wpengine.com/eula/. Notwithstanding the foregoing, You are responsible for complying with the updated terms posted online at BCI’s website even if these updated terms appear online at BCI’s website before being posted on the App. Your continued use of the App after BCI publishes notice of changes to this EULA indicates Your consent to the updated terms.